Tommy says…

I passed by the Guardianship Tribunal of NSW in Balmain recently, and noticed an Indian restuarant on its ground floor - it had a massive sign saying “AIR”. Air? That’s a strange name for an Indian restaurant, I thought. Then I noticed the small writing: “All India Restaurant“, and I realised that it was a pun. Geddit? I’m guessing no.

Here’s how it works: “All India Restaurant” → A.I.R. → “All India Reports”, the most commonly used law reports series for Indian cases → law → Guardianship Tribunal. Geddit?

I like it because it’s so obscure

Law, Random thoughts, The Sydney Grind All India Reports, Guardianship Tribunal, pun, shop signs

Hillary Clinton accepts Obama’s offer of the Secretaryship (word?) of State. Reading through the list of appointees, I saw a lot of familiar names. If, like me, you are an interested amateur when it comes to US politics, the following might help.

Name: Hillary Clinton
Appointed: Secretary of State
You may remember her from: Married to former President Bill Clinton, first lady 1993-2001. Wellesley College, Yale Law School, parnter of Rose Law Firm. Senator for New York state since 2000.
Quote: “We are the president” - according to James B Stewart

Name: David Axelrod
Appointed: Senior Adviser
You may remember him from: Nothing, but he has an Autobot surname (a more introspective variation of Hotrod?) and a moustache that makes him look like he’s still living in 1984.

Name: Gregory Craig
Appointed: White House Counsel
You may remember him from: special counsel to Bill Clinton, defending him against impeachment. A reversible name. Yale law schoolmate of Hillary and Bill.

Name: Ron Klain
Appointed: Chief of Staff to the Vice-President
You may remember him from: Chief of Staff to the Vice-President (Al Gore). Supreme Court tipstaff.

Name: Tom Daschle
Appointed: Secretary of Health
You may remember him from: “Senator Tom Daschle (D)”, from his days as Senate Majority Leader. Wikipedia says of Daschle: “Daschle became a brother of Alpha Phi Omega”. The article does not explain how Daschele’s brother acquired such a quirky name, and whether the surname Omega indicates that said brother was adopted from Greece.

To be continued.

Events, Law, Random facts, The Sydney Grind hillary, obama, politics, US, wikipedia

Unfortunately, I am at my most prolific when I should be studying for exams. All four of them in the next four days, to be precise.

I happened upon the Wikipedia article on family dictatorships - and the related articles on dynasties and political families - and found it in a most unsatisfactory state. I’ve edited it, but it’s got me thinking. When does a political dynasty turn into a family dictatorship, and when is a family dictatorship a monarchy?

The first difference seems to usually involve a value judgment as to the quality of the political system. If the country is democratic, as in the US, then the passage of a position from father to son creates a “political dynasty”, while if the country is judged to be a dictatorship, then this is a family dictatorship. I say “value judgment”, because clearly this is not a question of law. Many “dictatorships” have very nicely whitewashed constitutions and hold regular elections. Often, the boundary can be hard to define. Is Singapore a political dictatorship or merely a political family?

The latter difference also is not one strictly of laws and institutions. In a monarchy, the crown passes within the family by force of law. However, some family dictatorships also enshrine their succession by laws designating the dictator’s heir.

It seems to me that the conditions for consituting a string of leaders from the same family as a family dictatorship are something like this:

1. No general law of hereditary succession. If a regime adheres to a general law of hereditary succession, then regardless of how the leadership is named, it is a hereditary monarchy and not merely a dictatorship. This is a maximum threshold. Anything falling short of this can be a family dictatorship. This covers a broad spectrum of institutional positions. A state may enact an ad hoc law designating the leader’s proginy as the legal successor; or it may hold elections (as to which, see below); or it may simply in practice treat the successor as the new leader. An example of the last is Kim Jong-il, whose position, the chair of the National Defence Commission, was simply declared to be the highest office of the land by government propaganda after the death of his father as the President. Since the younger Kim is not the President, he needed not be elected and is under no constitutional obligation to present himself to the electorate either.
2. Use of political, not “soft” power. A family dictatorship is first and foremost a dictatorship. This means that the regime enacts its policies, including succession policy, by the use of politcal powers as represented by instruments of state. This is a minimum threshold. Thus, a regime that holds free and fair elections, but in which one family, because of the informal power and influence accrued to it, continues to hold political office, is not a family dictatorship. Thus, no matter how many Bushes are elected to the Presidency, the US is not a family dictatorship. The Bushes would achieve disproportionate success because of their economic power and informal influence, rather than control over state apparatus. By contrast, Singapore is arguably a family dictatorship. The (indirect) hereditary succession was instituted through the regime’s control over the country’s political process, which itself is maintained by relaxed separation of powers, the enactment of laws that hamper dissent, and using the law to force dissidents into bankruptcy, jail, or exile.

Family dictatorships share attributes with other forms of government. One is the non-transparent selection of a successor. The selection and cultivation of a successor usually involves the interplay of forces within the regime, and can often be highly personal. It is often highly uncertain, with successors falling in and out of favour over a long period of time. To a greater or lesser extent, the same process is found in all but the most transparent of systems. The second is the “grooming” of a successor. In order to attain either authority within the regime, or a veil of legitimacy in the eyes of the public, the successor is carefully planted in various positions to attain experience, often with a cult of personality built up around that experience. Such a process is also found across authoritarian regimes and in hereditary monarchies. One scene which I found curiously apt during the Olympics was that Chinese Vice President Xi Jinping was chosen to meet with all the visiting Crown Princes - as heir apparents, the selection ensured reciprocity. (A vice presidency does not equal heirdom apparent in China. Since each president now serves for two terms, the first term vice president is a holdover minder from the previous administration, and the second term vice president is the designated successor.)

Since I can’t think of any particularly nice pictures to put in here, enjoy these two Youtube videos:

A day in the life of the Prince of Wales: Part 1 

and

Dear Leader Kim Jung-il is the People’s Inspiration

Law, Random facts, Random thoughts china, politics, prince charles, singapore, US, wikipedia

Is the Great Wall of China lawful at international law in light of the International Court of Justice’s Advisory Opinion on the Legal Consequences of the Construction of a Wall? Discuss.

Law, Random thoughts

The next time you get frustrated by the queues at your bank, or the high fees and charges on your account, spare a thought for Xu Ting (许霆), the Chinese man sentenced to life imprisonment because he used a malfunctioning ATM.

The story began in April 2006, when Xu Ting went to his bank’s ATM to withdraw 1000 yuan. Curiously, the balance docket showed that only 1 yuan had been deducted. Xu repeated the step and withdrew some 54,000 yuan. That night, he told his friend Guo Anshan, and the two of them went back and did it again. Xu withdrew a total of 175,000, while Guo took 18,000. Both then skipped town. However, a year later, Guo reported himself to the police and returned the money. The police caught Xu soon after, though his 175,000 yuan had been lost on bad investments.

Pausing the story for a moment, I should note that, initially, I had thought that this would not be a crime under Australian law, since this was not “taking and carrying away fraudulently”, as required by the crime of larceny. Upon further investigation, however, I discovered that (in NSW at least) the Crimes (Computer and Forgery) Amendment Act 1989 (NSW) amended the offence of “obtaining by deception” (see provision here) so that “deception” includes:

(b) an act or thing done or omitted to be done with the intention of causing:
(i) a computer system; or
(ii) a machine that is designed to operate by means of payment or identification,
to make a response that the person doing or omtiting to do the act or thing is not authorised to cause the computer system or machine to make

This appears to cover Xu’s case, and carries a maximum sentence of 5 years. Of course, the question of whether the criminal law should protect banks in such a case is controversial: see Davies JA in dissent in Mujunen (1993) 67 A crim R 350; King CJ in Kennison v Daire (1985) 38 SASR 404, and Smith, Criminal Exploitation of New Technologies AIC Trends and Issues in Crime and Criminal Justice No 93 (July 1998).

Let’s turn back to what happened in China. When Gao “gave himself up”, he was sentenced to one year in prison and a 1000 yuan fine for larceny. Xu was subsequently sentenced to life imprisonment by the Intermediate People’s Court of Guangzhou City for the crime of “larceny from financial institution - involving an extraordinarily large sum”, permanent loss of political rights, confiscation of all personal property, and repayment of all 175,000 to the bank.

That’s right, life imprisonment. News of the sentence was met with incredulity in China from legal experts and the online community. “A mistake by an ATM puts the customer in jail for life?” was a typical headline.

There were three lines of criticism. The first questioned whether the elements of the offence had been made out. It was questionable whether an ATM constituted a “financial institution”, and whether Xu’s actions constituted larceny, or illegally and secretly obtaining possession. Despite his apparent intention to obtain wrongful possession of the money, Xu simply walked into a bank branch as he was entitled to do, and using his real identity, withdrew money from an ATM, as he was entitled to do. Such a “larceny”, said Peking University professor of law He Weifang, would be an “incredible larceny”.

Secondly, many commentators pointed towards the actions of the bank. The bank did not realise anything had gone wrong for almost a day after the incident. Furthermore, the entire episode was due to the malfunctioning of the ATM. Tsinghua professor Xu Zhangrun commented that the bank should apologise to Xu, whatever happens. The bank failed to provide an adequate level of service. The primary relationship between the bank and Xu was a contractual one, and as creditor to a debtor, the bank should have sought civil remedies before involving instruments of state.

The third line, and the question no doubt in your mind right now, is how, as a matter of law, can a person who is given money by a bank - even if he had malicious intentions - possibly be sentenced to life imprisonment? The truth is, this was not entirely the result of a callous judge or an abusive court. The court’s hands, to an extent, were tied by the law and legal system. This analysis (in Chinese) from the People’s Court newspaper in 2003  sheds some light on the law behind the seemingly incredible result. The offence “larceny from financial institution”, under Art 264 of the Criminal Code (see an English translation of the provision here), has three levels:

1. where the amount is “relatively large”: three years’ imprisonment, hard labour, or control surveillance
2. where the amount is “very large”: three to ten years’ imprisonment
3. where the amount is “extraordinarily large”: life imprisonment or death

While the provisions are fairly flexible, what sealed Xu’s fate - once the court accepted that he had committed larceny against a financial institution - was that the Supreme People’s Court had defined what each of these terms meant. According to its advisory opinion, more than “30,000 to 100,000″ yuan [around A$4,500 to 16,000] was “extraordinarily large”. Once it had accepted that an ATM was a financial institution, and Xu’s “malicious withdrawal” constituted larceny, the Intermediate People’s Court was bound to find that the sum involved was “extraordinarily large”. Given the choice between life imprisonment or a death sentence, it chose the more lenient option.

This result illustrates three weaknesses in the Chinese legal system. One, the confusion between public morality and criminal justice. Fundamentally, the relationship was a contractual one. It is questioned whether this was a situation where the criminal court should have been involved. The reservations expressed about the current treatment in Australian criminal law of the same situation apply equally to the Chinese law.

Two, the protection of special interests. The provision relied upon here imposes especially harsh penalties for taking from a financial institution. In the days when the bank was an arm of the Chinese government, it would have been reasonable for the law to especially protect it from attack. Today, however, most if not all Chinese banks are commercial operations with little or no public policy role. The effect of the law - if it was correctly interpreted by the Intermediate Court - is to give special protection to the stronger party in an essentially commercial, contractual relationship by force of the criminal law.

Thirdly, what I see as the fundamental problem that caused this result is the fact that the intermediate court was bound in its sentencing by the Supreme People’s Court’s directive - a directive that was, in fact, 10 years old in 2007. During those ten years, China’s economy had grown at around 10% every year. While 100,000 may have been an “extraordinarily large” sum in 1997, it was not so to the same extent by 2007. The Supreme Court’s binding directive was effective legislation by stealth. While the legislature intended to leave flexibility in the law’s operations, the Supreme Court destroyed that flexibility. Whereas a superior court’s precedent in a common law system interprets the law and applies it to particular facts, the Supreme Court’s arbitrary figure setting has the effect of writing in statutory words where none existed before. Just like the National People’s Congress’s “explanation” of the Basic Law of Hong Kong, which sparked protests, this incident serves to highlight the continued struggle of China’s legal and political system as it grapples with the rule of law and a system of checks and balances.

Returning to Mr Xu - the news was not all bad. Upon appeal, the Superior Court of Guangdong handed the case back for retrial, on the grounds of “unclear facts, insufficient evidence”. Xu’s lawyer is currently arguing that the bank’s record keeping system was flawed, and thus there was insufficient evidence of the theft. One obstacle facing Xu, though, is that public opinion is now turning against him, after he gave evidence in court that his intention was to take the money “for safekeeping” on the bank’s behalf, words that his father denounced as “lies” on national television. The saga continues.

 Update: On March 31, 2008, the intermediate people’s court on retrial convicted Xu Ting as charged, and sentenced him to five years imprisonment and a fine of 10,000 yuan (about $1,500 Australian).  In court, when asked by the judge, Xu said he will not appeal. The court avoided the mandatory sentencing provisions of the Criminal Code using Art 63(2) of the Code, which gave courts a discretion to impose a sentence lower than the minimum, where approved by the Supreme People’s Court.

Law, Technology

Good old APEC - there’s nothing like a security lockdown on a city of 4 million to inconvenience and annoy its denizens. One wonders whether some Labor mole is whispering in the ears of the Department of Prime Minister & Cabinet to build more fences, disrupt more services, and enforce more psychotically draconian laws.

I saw The Wall the other day going to an interview. Basically every street block within shouting distance of Circular Quay and Macquarie Street is surrounded by a 3 metre tall concrete-and-barbed-wire fence, except for a tiny door for pedestrian access - one on each block, so you have to walk all the way around the block if you want to cross the street. Is it a desperate attempt by the NSW government to boost the state GDP? A contract for some minister’s nephew with a struggling steel products factory? Some deprived soul down at the RTA who really hates rounded street corners? I guess we’ll never know.

On the way from law school to uni today, I was stuck on a bus in the city for half an hour. The bus was stopped at an intersection by a cop on a motorbike. Now, anyone who knows anything about me knows that I am happy to be stuck on public transport for hours at a time for any worthy purpose - be it a duck that needs to cross the street or CityRail tracks that melt in the rain. So I would be happy, nay, honoured, to be stopped to allow the motorcade of a world leader such as the founder of computer maker Acer (official representative of Taiwan, apparently) to pass.

But no. We were stuck there for half an hour, because a bunch of Falun Gong loonies needed to march down to Belmore Park, marching band and all, and proclaim that the Chinese Communist Party eat Falun Gongers alive. If there is one protest I wish the police would use their new-found powers to stop, this has got to be it. Their claims are insane, but what is more insane is that Australians appear to be so readily willing to believe them. Transplanted to any other context (say, Russia), claims of a huge government live organ harvest scheme would be consigned to the dusty conspiracy theories corner of the used book store, or maybe the lunatic asylum.

The Chaser have been arrested and charged for driving a fake motorcade into the APEC security zone (using these security passes). The NSW police are declaring this a victory - they managed to detect the problem when the cars stopped and one member dressed up as Osama bin Laden got out of the car, after the motorcade had gotten through just two check points. Judging by this stellar performance, the strongest arguments for Australia’s withdrawal from Iraq should surely be that we are endangering the lives of coalition soldiers - if they will let Osama bin Laden through two check points, imagine who they’re letting through to coalition bases in Iraq!

Law

Hosted a study session for 1st year Torts students today with Enoch. Drawing on lessons learnt in sessions past, I think we did a fairly good job of publication, preparation, and execution. Probably the biggest drawback was the timing - we needed to make the time suitable for our friends in 1st year, but this meant we couldn’t get many facilitators, and one class (out of five) could not attend the session.

Still, there were about 40 students attending, which was a healthy turnout (for our image and our accounts). I just hope the students took away enough useful info from the session to help with their quiz next week. Hopefully, if this all goes well, we could look towards expanding the scheme and pushing for the faculty to adopt what is clearly a successful model of operation in other faculties/unis. It’s pretty bizzare that it falls to a non-official student club to run what the faculty should be running.

Next time, hopefully 1) there will be more facilitators, 2) a better room that you can actually move around in, 3) whoever wrote “disagree” to “the facilitators met my expectations” won’t turn up, 4) my tutoring student with the hardcore death stare doesn’t turn up.

Events, Law

One of the most disappointing things for me this semester is that I am forced to do Criminology and drop Public International Law. To be honest, I have absolutely no interest in criminology, and very little in jurisprudence in general. It’s not because I’m intellectually opposed to jurisprudential theory. I just don’t have the sociological/philosophical grounding to appreciate it. For me, studying jurisprudence is like a blind man listening to a gallery curator describe a painting. I can hear and understand everything she’s saying about the difference between Modernism and Post-Modernism, but I can’t engage with the painting myself, nor can I try to paint a picture myself. In other words, interesting, but utterly useless.

What makes it worse is that I am forced to drop Public International Law to do Criminology, because the degree structure requires at least one jurisprudence subject - Criminology being one - and I need to do it now if I go on exchange next year. Public International Law is actually interesting to me, and probably the subject I have been most looking forward to in this degree. Now, chances are I won’t ever get to do it.

I understand the rationale behind the Jurisprudence requirement in a law degree. What I don’t understand is why they want to pretend they are offering a comprehensive education when it is anything but. To parrot Howard, it’s about choice, the freedom to choose. If I choose to learn nothing but black letter law with the odd dash of human rights, then I should be free to - just as another person who wants to do six units of jurisprudence is currently able to.

But then, the Sydney law program is much better structured than anything the E+B (Economics and Business) faculty can cough up, a fact of which I was painfully reminded during the investment banking interviews. I realised that, whereas 3 1/2 years of law has given me a reasonably comprehensive understanding of major areas of law, commerce has given me zilch. Up until 3 weeks ago, I had no idea what free cash flow was, or the difference between EV/EBITDA versus P/E, and the haziest idea about weighted average cost of capital. The problem there is that there’s too much choice - and no guidance from the faculty as to how you should make those choices. The problem is exacerbated for double degree students, who are restricted to doing one subject per major in their other degree — so you can’t do both Mergers & Acquisitions and Derivative Securities; and yet you have to do Trading and Dealing - probably the least educational of all finance subjects. The Finance pre-Honours program is even more of a joke. You get taught by a Horrible Creature from Outer Space, who marks on a whim and spends most of the class ranting against successful investment banks. Not a sight to inspire confidence in the honours program.

 So kids, don’t be fooled by their so-called “international accreditations”. Do your commerce degree at UNSW.

Law, Reviews

I don’t think I slept last night. That is, I remember lying awake in bed at 1 am, and I found myself awake at 6am, thinking about what I thought was an International Law question, except it turned out to be a Real Property problem…… I don’t remember going to sleep, but maybe I was drifting in semi-consciousness.

Never been so stressed out about exams since primary school (in Red China), and I’m sure the cup of espresso an hour before going to bed didn’t help either.

Did international law exam this morning - next (and last) is personal tax next Tuesday. Enthusiastically looking forward to a good night’s sleep.

[Transformers countdown removed]

Law

 I’d thought that Esq. was the same as Mr., but it turns out it (technically) isn’t. According to http://en.wikipedia.org/wiki/Esquire, esquires are the lowest title of dignity above gentlemen.

So are you an esquire? You are, if…

• You are the oldest son/grandson etc of a knight, or the son/grandson etc of a peer;
• You are a judge;
• You are a sheriff, JP, QC, or just a barrister;
• You have a degree from Cambridge or Oxford;
• You have a bachelor’s degree in Law, Divinity, or Medicine;
• You are a high ranking military officer, or
• The Queen calls you an esquire.

This is the (complicated) British usage. In American usage, if you are a lawyer, you are an esquire. So, who’s an esquire?

Law, Random facts